United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM DECISION
CAMPBELL, U.S. DISTRICT COURT JUDGE
Kaylee Conlin rented an apartment from Defendants RU Cliff,
Rize Homesource, and Jon Neviaser (the Landlord Defendants).
When she brought her dog Buckley to live in her apartment
(Buckley is a companion dog who helps reduce her anxiety),
she was threatened with eviction for violating the lease
agreement's no-pet provision and was given instructions
on how to obtain approval to keep Buckley. That approval
required completing forms provided by Defendants Law Offices
of Kirk Cullimore and attorney Kirk Cullimore (Defendants or
Cullimore Defendants) to the Landlord Defendants. She
ultimately received approval to keep Buckley, but her lawsuit
asserts that the process, and the Cullimore Defendants'
forms that dictated that process, violated her rights under
the Fair Housing Act (FHA).
Conlin asserts seven claims in her complaint, but only three
remain because the Landlord Defendants have been dismissed.
The remaining claims-the fourth, fifth, and sixth- allege
disparate impact, disparate treatment, and failure to provide
a reasonable accommodation, all in violation of the FHA.
Cullimore Defendants have moved for summary judgment on those
three claims, arguing that they owe no duty to Ms. Conlin
under the FHA and that she suffered no harm. Ms. Conlin
opposed the motion and filed a motion under Rule 56(d) of the
Federal Rules of Civil Procedure asking the court to stay a
decision until she could depose the Cullimore Defendants. She
also filed a motion for leave to amend her complaint and for
an extension of time to file dispositive motions. The court
held a hearing on October 30, 2019.
for the reasons set forth below, the Motion for Summary
Judgment is GRANTED IN PART AND DENIED IN PART, the Motion
for Leave to File Amended Complaint is GRANTED, the Rule
56(d) Motion is DENIED AS MOOT, and the Motion for Extension
of Time to File Dispositive Motions is GRANTED.
the Cullimore Defendants filed their summary judgment motion,
Ms. Conlin filed her Rule 56(d) Motion to Deny or Defer
Consideration of the Cullimore Defendants' Motion for
Summary Judgment. She said she could not fully respond to the
motion for summary judgment until she had deposed the
court was scheduled to hear the motions in July 2019. But the
parties agreed to continue the hearing so Ms. Conlin could
conduct discovery before opposing the motion for summary
judgment. Ms. Conlin took the depositions in June 2019 and
the parties filed supplemental briefs on the summary judgment
issues. Accordingly, as Ms. Conlin confirmed at the
court's October hearing, the Rule 56(d) Motion is moot.
FOR SUMMARY JUDGMENT
Motion for Summary Judgment targets Ms. Conlin's claims
under the FHA for disparate impact, disparate treatment, and
failure to provide reasonable accommodation.
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A fact is ‘material' if,
under the governing law, it could have an effect on the
outcome of the lawsuit. A dispute over a material fact is
‘genuine' if a rational jury could find in favor of
the nonmoving party on the evidence presented.”
Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir.
2013) (internal quotation omitted)).
the movant meets this initial burden, the burden then shifts
to the nonmovant to set forth specific facts from which a
rational trier of fact could find for the nonmovant.”
Talley v. Time, Inc., 923 F.3d 878, 893-94 (10th
Cir. 2019) (internal quotation omitted). Should the nonmovant
bear the burden of persuasion at trial, “[t]hese facts
must establish, at a minimum, an inference of the presence of
each element essential to the case.” Id.
(quoting Savant Homes, Inc. v. Collins, 809 F.3d
1133, 1137 (10th Cir. 2016)).
evaluating a motion for summary judgment, the court must view
the facts and draw all reasonable inferences in favor of the
non-moving party. Tabor, 703 F.3d at 1215. But this
is only true insofar as “there is a ‘genuine'
dispute as to those facts.” Scott v. Harris,
550 U.S. 372, 380 (2007). “Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for
trial.'” Id. (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587
Conlin's claims concern the lease agreement's written
policy about pets and the forms Ms. Conlin's landlord
provided to her. The Defendants, who were legal counsel to
the landlord, drafted the lease agreement and the three
forms, which consist of the “Affidavit and Request for
Companion Animal Form, ” the “Animal
Identification Form, ” and the “Medical Request
for Companion Animal.” The lease provision titled
“Animals” is also at issue. That section sets
rules about animals kept by every resident, but also contains
specific language addressing companion animals:
Resident may not keep, allow, or maintain animals of any kind
on or near the premises for any length of time without the
prior written consent of Owner. For any violation of this
provision, in addition to Owner's other remedies, Owner
may charge and collect the sum of $50 per day, per violation.
All costs of cleaning, de-fleaing or other damage or loss
suffered on account of a violation of this section shall be
promptly paid to Owner by Resident. Violation of this
provision will allow Owner to commence eviction on the basis
of nuisance without any further notice or opportunity to
cure. Resident is required to get approval for any
companion or service animal PRIOR to the animal coming onto
the premises. Failure to obtain approval is a significant
violation of this agreement which shall allow for immediate
eviction. Owner may create and maintain such rules and
regulations relating to animals as Owner, in its sole
discretion, determines appropriate.
Rental Agreement at 6-7, ECF No. 93-5 (underline emphasis
afternoon of Tuesday, November 24, 2015, Ms. Conlin's
landlord, who had just discovered that Buckley was living in
the apartment, sent Ms. Conlin an email with the Cullimore
Defendants' forms attached and told her to fill out and
return the forms to him no later than November 30, 2015.
Before he sent her the email, he told her she had three days
to vacate the apartment and pay “the full amount of the
next seven month's [sic] rent.” (Nov. 23, 2015
email from Ms. Conlin to Jon Neviaser, Ex. 8 to Mot. Summ.
J., ECF No. 93-8.) He later said that although she still had
three days to move out, she only had to pay rent for two
Affidavit and Request for Companion Animal Form required her
to swear that she qualified as “handicapped”
under the definition provided and that she was or had been
“under the care of a medical professional for [her]
disability; or have been so diagnosed with a permanent
disability to no longer require medical supervision.”
(Ex. 2 to Mot. Summ. J., ECF No. 93-2.) It also required her
to confirm that the “requested companion animal is
necessary to provide assistance” with her disability,
indicate the “anticipated length” of her
disability, and provide the name and number of her primary
Medical Request for Companion Animal Form required her doctor
to certify that she is handicapped and agree to testify about
that diagnosis in court. It also analogized the assistance
animal to a prescription.
Animal Identification Form told her to describe “any
special training or certification” of Buckley and to
state whether he had “ever been reported to authorities
for any incident or for any reason.” (Ex. 3 to Mot.
Summ. J., ECF No. 93-3.) She was also told to submit a
photograph of Buckley and proof of his vaccinations.
Ms. Conlin's landlord gave her six days to complete the
forms, that six-day period spanned the Thanksgiving holiday
weekend. Thanksgiving fell on November 26th, just two days
after Ms. Conlin was given instructions on how to obtain
approval to keep Buckley. And she was required to submit the
completed forms by 5:00 p.m. on November 30, 2015, the Monday
after the Thanksgiving weekend.
Monday the 30th, Ms. Conlin responded to the landlord, but
she did not provide the forms. Instead, she provided a note
from her physician. Later that day, the landlord granted Ms.
Conlin's request to keep Buckley as a companion animal.
Ultimately she was not required to fill out the forms.
Conlin asserts that she was harmed when her landlord told her
to comply with the requirements set forth in the forms the
Cullimore Defendants crafted, copyrighted, promoted, and
distributed to landlords (including non-client landlords)
throughout the country. According to Ms. Conlin, those
documents purposely contained incorrect and misleading
information about what the law requires, imposed obligations
that went above and beyond what is required by someone
seeking approval to have a companion animal, and were
designed to intimidate, harass and deter a disabled person
requesting a companion animal.
Ms. Conlin's claims against the Cullimore Defendants
asserts violations of two FHA provisions: 42 U.S.C.
§§ 3604(f)(2) and 3604(f)(3)(B). Claim Four
asserts a violation of the FHA for “creating and
utilizing forms which are impermissibly burdensome and
discriminatory[.]” (Compl. ¶ 64, ECF No. 2.) Claim
Five alleges an FHA violation for “creating and
requiring forms that require intrusive amounts of information
that is unnecessary to evaluate a request for reasonable
accommodation.” (Id. ¶ 70.) And Claim
Six, also alleging a violation of the FHA, says the
Defendants are liable for “creating and utilizing forms
that contain misleading and inaccurate information regarding
reasonable accommodations.” (Id. ¶ 76.)
Provisions at Issue
Disparate Treatment and Disparate Impact Under §
first provision, 42 U.S.C. § 3604(f)(2), says it is
unlawful “[t]o discriminate against any person in the
terms, conditions, or privileges of sale or rental of a
dwelling, or in the provision of services or facilities in
connection with such dwelling, because of a
handicap[.]” This section imposes liability for
intentional discrimination, also called, “disparate
treatment, ” and, alternatively, discriminatory effect,
also referred to as “disparate impact.”
Cinnamon Hills Youth Crisis Ctr. v. Saint George
City, 685 F.3d 917, 919 (10th Cir. 2012); Bangerter
v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir. 1995)
(“It is widely accepted that an FHAA violation can be
demonstrated by either disparate treatment or disparate
impact.”). “A disparate impact analysis
examines a facially-neutral policy or practice, such as a
hiring test or zoning law, for its differential impact or
effect on a particular group. Disparate treatment
analysis, on the other hand, involves differential treatment
of similarly situated persons or groups.”
Bangerter, 46 F.3d at 1501 (quoting Huntington
Branch, NAACP v. Town of Huntington, 844 F.2d 926, 933
(2d Cir. 1988)) (emphasis added).
disparate impact claim “doesn't require
proof of intentional discrimination.” Cinnamon
Hills, 685 F.3d at 922. “To prove a case of
disparate impact discrimination, the plaintiff must show that
a ‘specific policy caused a significant disparate
effect on a protected group.'” Id.
(quoting Reinhart v. Lincoln Cty., 482 F.3d 1225,
1229 (10th Cir. 2007)). “This ‘is generally shown
by statistical evidence … involv[ing] the appropriate
comparables' necessary to create a reasonable inference
that any disparate effect identified was caused by the
challenged policy and not other causal factors.”
other hand, a disparate treatment claim concerns
intentional discrimination. “There are two ways to
prove intentional discrimination (or ‘disparate
treatment').” Id. at 919. The plaintiff
may provide direct proof of discriminatory intent, or the
plaintiff may point to circumstantial evidence and then apply
the burden-shifting framework set out in
McDonnell-Douglas Corp. v. Green, 411 U.S. 792
Reasonable Accommodation Under § 3604(f)(3)(B)
addition to prohibiting disparate impact and disparate
treatment, the FHA includes a provision-§ 3604(f)(3)(B)-
requiring reasonable accommodation of a person's
disability. Discrimination on the basis of a
“handicap” includes “a refusal to make
reasonable accommodations in rules, policies, practices, or
services, when such accommodations may be necessary to afford
such person equal opportunity to use and enjoy a
dwelling[.]” 42 U.S.C. § 3604(f)(3)(B).
Defendants emphasize that Ms. Conlin did not have direct
communication with them. They also point out that they did
not decide whether to accommodate Ms. Conlin's request to
keep Buckley in her apartment. And in a large portion of
their briefs, they state that they provided the forms solely
in their capacity as legal counsel for the Landlord
their motion, they make the following arguments: (1) the FHA
does not impose liability on an attorney for giving legal
advice to a client; (2) Ms. Conlin's request for
accommodation was granted; (3) she cannot show disparate
impact; and (4) she cannot show disparate
repeatedly emphasize that they cannot be liable under the FHA
for advice they gave to their client. But Ms. Conlin
expressly states that her claim does not focus on the
attorney-client relationship between the Cullimore Defendants